"that they did not own the oil which they proposed furnishing at the time they made their bid, and that they entered into a contract with the Galena Signal Oil Company, by virtue of which they expect deliveries to them from that company from time to time to fill the contract with the Isthmian Canal Commission, in case the award shall be made to them."

That parties offering to furnish supplies or products for future deliveries over a considerable period of time under a contract have not the same in ownership at the time of bidding or even of entering into the contract is a common occurrence in business transactions. You say, in connection with this matter, "it should be stated that it is doubtless the fact that no bidder owned, at the time of making the bid, the oils which would be delivered under the contract."

In their letter of March 5, 1910, however, Messrs. Motley, Green & Co. say: "We have a valid contract with the Galena Signal Oil Company for the supply of these oils and are in a position to call upon them for the same at any time. They have no interest in our contract in any way whatever."

It is not disclosed in the papers submitted where any of the bidders other than Motley, Green & Co. are to obtain the supplies bid for. Some of them may be manufacturers. Others certainly are not. These will purchase oils, to fulfill their contracts, to their own best advantage. It will hardly be supposed that the Government can investigate all the sources from which these products are obtained.

Upon this statement of facts I can only advise that if in your opinion Messrs. Motley, Green & Co. have acquired bona fide and in their own right the supplies proposed to be contracted for and are not middlemen or agents for the Galena Signal Oil Company or any of the other corporations enumerated in your circular of December 11, 1909, then there is no reason why you should not award the contract to them. The advisory powers of the AttorneyGeneral do not extend to an examination of evidence to ascertain what is established by a preponderance of testi

mony (17 Op. 172), nor can he settle facts ex parte from papers submitted and then proceed to give an opinion. thereon (18 Op. 487; 19 Op. 672). The question involved would appear to turn wholly upon a conclusion of fact as to the status of the bidder to be made from such evidence as you can procure, and to involve therefore the exercise of judgment and discretion by you with which I can not under the law or with propriety interfere.

Very respectfully,

GEORGE W. WICKERSHAM.

The SECRETARY OF WAR.

COPYRIGHT LAW-FOREIGN AUTHORS-PROCLAMATION OF THE PRESIDENT.

A foreign author or proprietor, not domiciled within the United States at the time of the first publication of his work, is not entitled to the benefits conferred by the copyright act of March 4, 1909 (35 Stat. 1075), until after the President has issued a new proclamation declaring the existence of the reciprocal conditions set forth in that act. A previous proclamation under the act of March 3, 1891, sec. 13 (26 Stat. 1110), is not sufficient.

In such a case the proclamation issued by the President does not create the right of foreign authors or proprietors to enjoy the privileges of our copyright laws, but is only the evidence of the existence of conditions under which those rights and privileges may be exercised, and is conclusive evidence on that point. The new proclamations may be retroactive in terms and effect.

DEPARTMENT OF JUSTICE,
March 19, 1910.

SIR: I have the honor to acknowledge receipt of your communication of March 7, 1910, in which you ask my opinion upon the following questions:

1. Is it necessary, in order that the benefits conferred by the copyright act of 1909 may be enjoyed by an alien author or proprietor (not domiciled within the United States at the time of the first publication of his work), that new proclamations shall be issued by the President in

the case of those countries as to which proclamations have already been issued under the previous law?

2. If the answer to this question be in the affirmative, may such new proclamations be retroactive in terms and effect?

In response thereto I will say:

By section 13 of the act of March 3, 1891 (26 Stat. 1110), by which many of the sections of the copyright law as it appeared in the Revised Statutes were amended, it was provided:

"That this act shall only apply to a citizen or subject of a foreign state or nation when such foreign state or nation permits to citizens of the United States of America the benefit of copyright on substantially the same basis as its own citizens; or when such foreign state or nation is a party to an international agreement which provides for reciprocity in the granting of copyright, by the terms of which agreement the United States of America may, at its pleasure, become a party to such agreement. The existence of either of the conditions aforesaid shall be determined by the President of the United States by proclamation made from time to time as the purposes of this act may require."

The act of March 4, 1909 (35 Stat. 1075), is entitled "An act to amend and consolidate the acts respecting copyright," and it was manifestly the purpose of Congress to embrace therein all the laws upon the subject; and by the proviso to section 8, which relates to authors or proprietors who are citizens of foreign states or nations, it is provided:

"Provided, however, That the copyright secured by this act shall extend to the work of an author or proprietor who is a citizen or subject of a foreign state or nation, only: (a) When an alien author or proprietor shall be domiciled within the United States at the time of the first publication of his work; or

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"(b) When the foreign state or nation of which such author or proprietor is a citizen or subject grants, either

by treaty, convention, agreement, or law, to citizens of the United States the benefit of copyright on substantially the same basis as to its own citizens, or copyright protection substantially equal to the protection secured to such foreign author under this act or by treaty; or when such foreign state or nation is a party to an international agreement which provides for reciprocity in the granting of copyright, by the terms of which agreement the United States may, at its pleasure, become a party thereto.

"The existence of the reciprocal conditions aforesaid. shall be determined by the President of the United States, by proclamation made from time to time, as the purposes of this act may require."

The question is whether, if publication as to certain foreign countries was, before the passage of the act of 1909, made by the President, as required by the act of 1891, it is necessary for another publication to be made under said latter act before the benefits conferred thereby can be enjoyed by an author or proprietor who is a citizen of a foreign state or nation, and who was not domiciled within the United States at the time of the first publication of his work.

The act of 1909 not only embraced all, or substantially all, the principal features of the previous copyright laws, but it adds several material provisions thereto. For illustration, in paragraph (e) of the first section there are found provisions with reference to the reproduction of music upon mechanical instruments, etc., which nowhere appear in the previous laws, and it is there provided:

"That the provisions of this act, so far as they secure copyright controlling the parts of instruments serving to reproduce mechanically the musical work, shall include only compositions published and copyrighted after this act goes into effect, and shall not include the works of a foreign author or composer unless the foreign state or nation of which such author or composer is a citizen or subject, grants, either by treaty, convention, agreement, or law, to citizens of the United States similar rights."

Since, therefore, material and important provisions have, by this act, been added to the copyright laws, and all of the old provisions which remain in force are embraced therein, and since all rights and privileges which may now be enjoyed under the copyright laws must be secured under the provisions of this act and not of any former laws, it is fair to presume that, when Congress provided by express terms that the existence of certain conditions should be determined and proclamation thereof made by the President before foreign authors or proprietors can enjoy the privileges of a copyright secured by this act, a determination and proclamation under this act was contemplated, and that a previous proclamation under a former act is not sufficient.

This conclusion is further strengthened by the fact that there is a material difference in the requirements of the present law and that of 1891. By that act the conditions under which a foreign citizen or subject might procure the rights and privileges of the copyright law were that the foreign state or nation of which he was a citizen or subject permit to citizens of the United States the benefit of copyright on substantially the same basis as its own citizens or subjects, or that such foreign state or nation be a party to an international agreement which provides for reciprocity in the matter of copyright, by the terms of which agreement the United States, at its pleasure, might become a party thereto; while in the last act, to these conditions is added the further one in the alternative, that such foreign country afford to citizens of the United States copyright protection substantially equal to the protection secured to the foreign author under this act, or by treaty; and, as above shown, with reference to the reproduction of music. by mechanical instruments, rights similar to those given by this act must be granted to citizens of the United States. And, since this last-mentioned condition was not in the previous laws, a proclamation thereunder by the President can be no evidence that it is complied with by a foreign state or nation.

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